Citation Nr: 9837553
Decision Date: 12/23/98 Archive Date: 12/30/98
DOCKET NO. 97-07 624 ) DATE
)
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On appeal from the
Department of Veterans (VA) Affairs Regional Office (RO) in
Manila, Philippines
THE ISSUE
Entitlement to an increased (compensable) rating for
bilateral hearing loss.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. J. McCafferty, Counsel
INTRODUCTION
The veteran had active duty from September 1973 to his
retirement in January 1996.
This case was before the Board in June 1998 at which time it
was remanded for due process purposes. The record showed
that the veteran had been scheduled for a hearing in July
1997, but a transcript of said hearing was not of record.
The RO was asked to provide a copy of the hearing transcript
or, if unavailable, to provide the veteran with an
opportunity for another hearing.
In a letter to the veteran, dated in July 1998, the RO noted
that a transcript was not made at the time of the hearing
because the veteran had no new evidence to offer and simply
requested another audiological examination that was scheduled
and conducted. The letter then offered the veteran the
opportunity for a hearing, if he so desired. No response was
received from the veteran with respect to the offer of
another hearing and in late November 1998 the case was
returned to the Board for further appellate review based on
the evidence of record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in effect, that his bilateral hearing
loss should be rated as compensable. He also contends that
the fact that he wears two hearing aids should be considered
in rating his hearing loss. He also argues that the
audiological findings on his service retirement examination
were not obtained at that time, but were taken from a 1992
service examination.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the veteran's claim for a compensable
rating for his bilateral hearing loss.
FINDINGS OF FACT
1. All available evidence necessary for disposition of the
appeal has been obtained by the RO.
2. The veteran had level II hearing in the right ear and
level I hearing in the left ear on audiometric examination in
October 1996.
3. The veteran had level III hearing in the right ear and
level III hearing in the left ear on audiometric examination
in July 1997.
CONCLUSION OF LAW
The criteria for a compensable rating for a bilateral hearing
loss are not met. 38 U.S.C.A. § 1155, 5107 (West 1991 &
Supp. 1998); 38 C.F.R. §§ 4.7, 4.85, and Part 4 Diagnostic
Code 6100 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background. The record shows that the veteran
developed bilateral high frequency hearing loss during
service and was issued hearing aids in the 1990s. At time of
service retirement examination, an audiometric examination
was not conducted. Instead, findings from a 1992 audiometric
examination were used. The veteran filed his claim for
service connection for a bilateral hearing loss in October
1996.
On VA examination in October 1996, a bilateral mild to
moderate mixed hearing loss was noted. Pure tone thresholds
were 35 decibels, 45 decibels, 50 decibels, and 50 decibels,
at the 1,000, 2,000, 3,000 and 4,000 hertz frequencies,
respectively, for an average pure tone threshold of 45
decibels and 92 percent speech recognition ability in the
right ear. On the left, the veteran had pure tone thresholds
of 35 decibels, 35 decibels, 50 decibels and 45 decibels at
the 1,000, 2,000, 3,000, and 4,000 hertz levels, respectively
for an average pure tone threshold of 41 decibels with 92
percent speech recognition ability.
A rating action in November 1996 granted service connection
for a bilateral hearing loss and assigned a noncompensable
rating under Diagnostic Code 6100 from the day following
service retirement. The veteran disagreed with the
noncompensable rating assigned for his hearing loss pointing
out that he wore two hearing aids.
The veteran was afforded a second VA audiometric examination
in July 1997 at which time a bilateral moderate sensorineural
hearing loss was noted. Pure tone thresholds were 40
decibels, 45 decibels, 50 decibels, and 60 decibels, at the
1,000, 2,000, 3,000 and 4,000 hertz frequencies,
respectively, for an average pure tone threshold of 49
decibels and 80 percent speech recognition ability in the
right ear. On the left, the veteran had pure tone thresholds
of 40 decibels, 40 decibels, 55 decibels and 55 decibels at
the 1,000, 2,000, 3,000, and 4,000 hertz levels, respectively
for an average pure tone threshold of 48 decibels with 80
percent speech recognition ability.
Criteria. Disability evaluations are determined by the
application of a schedule of ratings which is based on
average impairment of earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Separate diagnostic codes identify the
various disabilities.
Evaluations of defective hearing range from noncompensable to
100 percent based on the organic impairment of hearing acuity
as measured by the results of controlled speech
discrimination tests together with the average hearing
threshold level as measured by puretone audiometry tests in
the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per
second. The provisions of 38 C.F.R. § 4.85 establish eleven
auditory acuity levels from I to XI. Tables VI and VII as set
forth in § 4.85 are used to calculate the rating to be
assigned. 38 C.F.R. §§ 4.85, 4.87,and Part 4, Diagnostic
Codes 6100 to 6110 (1998).
The provisions of § 4.85 require that certain controlled
speech discrimination tests and puretone audiometry tests be
conducted in order to rate defective hearing.
The United States Court of Veterans Appeals (Court) has held
that the assignment of a disability rating for hearing
impairment is derived by a mechanical application of the
rating schedule to the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
Analysis. Initially, the Board notes that the veteran has
presented evidence of a well-grounded claim within the
meaning of 38 U.S.C.A. § 5107(a), in that it is plausible his
bilateral hearing loss is more disabling than currently
evaluated. The Board is satisfied that all relevant facts
have been properly developed, and that no further assistance
to the veteran is required in order to comply with 38
U.S.C.A. § 5107(a).
While the Board has considered the veteran's contentions with
respect to the severity of his hearing loss and his use of
hearing aids, there is no clinical evidence of record which
shows that the veteran’s hearing loss is so severe as to meet
the criteria for a 10 percent rating. The veteran has
undergone two official audiometric testings by the VA and his
reported hearing acuity does not meet the criteria for a
compensable rating.
Hearing loss is evaluated under the provisions of 38 U.S.C.A.
§ 1155 and 38 C.F.R. Part 4 as noted above. To evaluate the
degree of disability from bilateral service- connected
defective hearing, the rating schedule establishes 11
auditory acuity levels, designated from level I for
essentially normal acuity through level XI for profound
deafness.
When the pure tone threshold average is 45 decibels with 92
percent speech recognition ability, the hearing acuity is
classified as level II. 38 C.F.R. § 4.87. When the pure
tone threshold is 41 decibels, with 92 percent speech
recognition ability, the hearing acuity is classified as
level I.
When the pure tone threshold average is 49 decibels with 80
percent speech recognition ability, the hearing acuity is
classified as level III. 38 C.F.R. § 4.87. When the pure
tone threshold is 48 decibels, with 80 percent speech
recognition ability, the hearing acuity is also classified as
level III.
Under Diagnostic Code 6100, when hearing is level I in one
ear and level II in the other or when the level in each ear
is level III, noncompensable ratings are assigned. Based on
the foregoing, the veteran has been assigned a noncompensable
rating, which is the proper rating based on the reported
audiometric findings. While the veteran’s hearing loss
increased between examinations, it still does not meet the
regulatory criteria for a compensable rating.
The Board has considered the veteran’s contention concerning
his retirement examination, the Board notes that the assigned
rating was not based on this examination, but on the two
postservice VA examinations. Further, while the veteran’s
need for hearing aids is a point for consideration, it does
not establish that his hearing loss is sufficient to warrant
a compensable rating. In fact, the evaluations derived from
the schedule are intended to make proper allowance for
improvement by the use of hearing aids.
Finally, as noted above, the assignment of disability ratings
for hearing impairment is derived by mechanical application
of the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet.App. 345 (1992). Such application here
results in the assignment of a noncompensable rating for the
veteran’s bilateral hearing loss.
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4, whether or not they were raised by the veteran, as
required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
ORDER
A compensable rating for the veteran’s bilateral hearing loss
is denied.
Gary L. Gick
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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